Arapahoe County Deputy Sheriffs, Justin Osborn, right, and Beau Baggett, left, perform road side sobriety tests on a driver suspected of drunk driving along the 6900 block of S. Jordan Road in Centennial on April 18, 2009. The woman was arrested and charged with D.U.I. (Andy Cross / The Denver Post)

Colorado judges are handing out wildly different sentences for habitual drunken drivers convicted under a new felony DUI law, with about one in 12 defendants receiving no incarceration time and others getting lengthy prison sentences, a review of sentencing data shows.

The disparities have prompted complaints from prosecutors who say that the law making fourth and subsequent DUI offenses felonies, which went into effect last year, was a step backward in an important way: Under the old law all offenders with three or more misdemeanor drunken-driving charges got at least 60 days in jail. That law still applies to third-time offenders, but for felony fourth-time offenders judges now have wide discretion on whether to impose any incarceration.

Backers of the new felony law pushed for legislative passage in 2015 saying it was time to bring Colorado in line with 45 states that already had felony DUI laws in place. Under the new law in Colorado, a fourth DUI conviction carries a sentence of up to six years in prison. To pass the law over objections that it would be too costly for the state and too punitive, however, supporters compromised and agreed that a felony DUI conviction would have no mandatory jail or prison time.

The Denver Post reviewed the cases of 316 felony DUI offenders sentenced since the law took effect in August 2015. The newspaper, which obtained the data from the state in an open-records request, found 25 of the cases resulted in probation or community service but no incarceration time.

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Nearly 30 percent of the cases resulted in a prison sentence and about 48 percent included a straight jail sentence. The rest of the sentences, about 22 percent, were for time served in halfway houses, jail work-release programs or straight probation, the review found. Of those more lenient sentences, more than two dozen offenders or nearly 8 percent of the total spent no time behind bars for their convictions. In three cases, judges granted home detention, something Colorado law restricts to only the most limited of circumstances upon conviction of a third misdemeanor DUI. In another, a judge sentenced an offender to eight days in jail.

"The public lobbied hard to get the felony DUI in the law, but if the public expected these guys to go to prison, that's not happening very often," said Peter Weir, the district attorney for Jefferson and Gilpin counties, referring to the fact that about two-thirds avoid time in a state Department of Corrections facility. "These are potentially dangerous individuals. They've ignored opportunities in the past. They have had treatment mandated. They have had sanctions, and they have not gotten the message. For the community's safety, we have to lock them up and get to where they can't drink and drive and hurt families."

Arapahoe, Adams and Jefferson counties each had at least four felony DUI cases that ended up with only probation or little jail time, the only jurisdictions in the metro area with that result. In contrast, judges in Douglas County imposed significant incarceration time in all four of the DUI cases prosecuted to conclusion there.

In about 40 of the cases — mostly in Denver and Boulder County — judges granted deferred judgment arrangements through plea agreements that allow their felony guilty pleas to be dismissed after jail time is done, The Post found. In such instances, the prosecutors required the defendants to also plead guilty to a misdemeanor DUI.

The wide range in sentencing patterns has resulted in a spirited debate, with some prosecutors and the chief sponsor of the felony DUI legislation hoping to revisit the issue in the upcoming legislative session. They want to amend the new law to require some incarceration for a felony DUI conviction. Others from the defense bar, along with the top prosecutor in Denver, say they do not want to undercut local control and think mandating incarceration would be counter-productive and take away the discretion they say is needed for some individuals.

Denver District Attorney Mitch Morrissey is against changing the law to mandate prison terms for felony DUIs. He said doing so likely would result in those his office prosecutes receiving less incarceration time than the ones currently sentenced to the local jail in Denver, where they must engage in intensive treatment. Statistics show most of those sentenced in Denver go this route. Morrissey fears a prison mandate could result in defendants getting warehoused and released with little treatment from the DOC. Those sentenced to four years in prison can be released to halfway houses in just two months, he said.

"I'd much rather see someone get treated in our jail, and have them go through a rigorous program like we have, than have them just go spinning through the revolving door that the DOC in this state has become," Morrissey said.

But Weir points to his office's unsuccessful efforts to incarcerate Peter Cain, 48, of Morrison, convicted of a felony DUI after a trial this year, as to why he thinks changes are needed. Cain was stopped in September 2015 driving his red Harley Davidson motorcycle with bloodshot eyes, his voice slurred, with the strong odor of alcohol on his breath. He'd had five prior convictions for driving under the influence or driving while ability impaired and five prior felony convictions. Jefferson County District Court Judge Todd Vriesman sentenced Cain to two years in prison for the felony DUI, but suspended the sentence in lieu of successful outpatient treatment. The judge placed Cain on two years probation for pleading guilty to driving while his license was under restraint for alcohol-related reasons.

In contrast, Weir's office succeeded in getting a prison sentence for Joseph Martinez, 55, of Wheat Ridge, who pleaded guilty to a felony DUI in May, his 16th alcohol-related driving conviction since 1981 and his seventh felony conviction. Jefferson County District Court Judge Philip McNulty sentenced Martinez to six years in prison.

"We have completely different ends of the spectrum here," Weir said.

The new law left wide discretion to judges and required them to consider other options besides prison. The law instructs judges that they should only sentence a defendant to prison for a felony DUI if they "determine that incarceration is the most suitable option given the facts and circumstances of the case, including the defendant's willingness to participate in treatment." The law also instructs judges to assess "whether all other reasonable and appropriate sanctions and responses to the violation that are available to the court have been exhausted, do not appear likely to be successful if tried, or present an unacceptable to risk to public safety."

"These are individuals who already have had repeated chances at treatment," he said.

Complicating matters, Weir said, is the fact that judges often grant probation along with a jail sentence for a felony DUI, but when such probation is granted the maximum jail sentence a judge can impose is 90 days in jail. In contrast, a third offense misdemeanor DUI mandates a minimum of 60 days and a maximum of a year in jail, with options for work release. Weir said he'd like to see the legislature allow between a year to three years in jail when probation is granted for a felony DUI instead of the maximum 90 days currently allowed under such probation arrangements.

Rep. Lori Saine, a Republican from Firestone who was the prime sponsor of the felony DUI legislation, said she will push this year for mandatory incarceration for such felony convictions in the upcoming legislative session.

"The courts are interpreting the DUI felony law to give out less jail time than would be mandated under a misdemeanor DUI," said Saine, whose uncle was killed by a drunken driver. "That wasn't the intent. Sometimes jail and prison is the most compassionate choice, not only for the victims of drunk drivers but the drinkers themselves. They are separated from the problem and are motivated to get treatment."

She said statistics from the Colorado State Patrol, which accounts for 20 percent of DUI arrests in the state, show the new felony law is having an impact. The state patrol says its DUI citations involving just alcohol declined by more than 20 percent for the year the new law began to take effect, from 4,672 arrests in 2014 down to 3,684 in 2015. A decline in citations is continuing so far this year, though not as rapidly.

"The law is working," Saine said. "Can we strengthen it so there is mandatory incarceration time? Yes, I think that can be accomplished in the next legislative session."

Douglas Wilson, Colorado's state public defender, who is in charge of the system that represents indigent defendants, expressed surprise at The Post's findings that dozens of felony DUI convictions resulted in a sentence that imposed no jail or prison time.

But Wilson argued against revisiting the law to mandate incarceration for a felony DUI.

"Minimum mandatory sentences are going away across the nation because they limit the ability for the court to take into account each individual's personal characteristics and individual records," Wilson said. "If everyone gets a cookie-cutter approach, that ends up with the mass incarceration problem we have across the country."

He added that requiring incarceration for a felony DUI will result in more of the cases going to trial because there will be no incentive to plea bargain. Judges also receive guidance in their sentencing decisions through probation professionals who submit pre-sentence investigative reports that take into account each defendant's specific characteristics and the facts related to the offense, Wilson said.

The Post's review of the sentencing data found striking differences among courts throughout the state, sometimes even when the same district attorney's office is prosecuting cases.

All four of the felony DUI cases that went through sentencing in Douglas County had a prison sentence, though a judge suspended one of those and imposed one year in jail instead of six years in prison. A Douglas County District Judge, Richard Caschette, also imposed the harshest sentence in the state for a felony DUI. He sentenced Lawrence Pagenkopf, 53, to 12 years in prison after he pleaded guilty last year to his sixth DUI conviction. His plea agreement indicated that he would receive a sentence enhancement beyond the normal maximum of six years in prison for a felony DUI because he was a habitual offender with 11 prior felony convictions.

The 18th Judicial District attorney's office prosecuted that case as well as that of Doyle Carmack, 54, who received no incarceration time at all after pleading guilty to a felony DUI, his sixth DUI conviction. Prosecutors had sought to have him sentenced to six years at a community corrections halfway house. Instead, Arapahoe County District Judge Natalie Chase sentenced Carmack to five years on probation and 75 hours of community service.

Carmack's was one of several felony DUI cases in Arapahoe that resulted in sentences of just probation with no incarceration. The Post found five of the 26 cases in Arapahoe ended with just probation. In all of those sentences of probation, prosecutors agreed not to seek prison time in exchange for guilty pleas. The offenders in two were veterans who were suffering from post-traumatic stress disorder. Five of the 26 cases resulted in prison sentences.

For District Attorney George Brauchler, the sentencing data raises questions and concerns. He said he is unsure if prosecutors are seeking less punitive sentences and pleading out cases in Arapahoe County courts in contrast to Douglas County courts because of judicial philosophies. It's hard to draw conclusions considering there are not as many cases filed in Douglas as there are in Arapahoe, he said.

"I think Douglas County is a different county than Arapahoe, for sure," Brauchler said. "I think if you look at the difference in violent crime, it's night and day. You have judges in Douglas County who are perceived as stronger sentencers than many of the judges in Arapahoe County."

After the Carmack sentence, Brauchler spoke out in favor of mandatory incarceration for felony DUIs, writing an opinion piece that was published in the Aurora Sentinel.

"When our state legislature finally joined 45 other states in passing a felony DUI law in 2015, it failed to include one minute of mandatory incarceration, leaving open the possibility that the drunken drivers with the worst records could serve no time at all," Brauchler wrote. "That result makes little sense to Aurorans and it creates an injustice for those sent to jail for statutorily 'lesser' acts of drunken driving."

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